T.W. v. M.S. CA4/1

Filed 4/21/23 T.W. v. M.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

T.W., D079500

Plaintiff and Respondent,

v.
(Super. Ct. No. DN188889)
M.S.,

Defendant and Appellant.

APPEAL from the Judgment of the Superior Court of San Diego
County, Margo Lewis Hoy, Judge. Affirmed.

M.S., in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2016, plaintiff/mother T.W. and defendant/father M.S. had a son, C.
Shortly after C.’s birth, the parties became embroiled in litigation that has
now spanned more than six years, leading to four separate appeals that are

currently pending before this court.1
In this particular appeal, M.S., who is appearing in propria persona as
he has throughout the trial court proceedings, seeks review of the June 4,
2021 judgment (Judgment) concerning among other subject matters T.W.’s
move-away request and child custody of C., which is supported by a 24-page
final statement of decision and ruling issued by the trial court on March 30,

2021 (SOD).2 M.S. claims the Judgment is “inconsistent with, and [is] a clear
violation of California’s public policy” as provided in the Family Code; and

1 See also D079984 (T.W.’s appeal from the June 30, 2021 order denying
her request to permanently renew the domestic violence restraining order
(DVRO) against M.S.); D080174 (M.S.’s appeal from the August 11, 2021
order denying his own request for a permanent DVRO against T.W.); and
D080542 (T.W.’s appeal from the February 28, 2022 order reducing M.S.’s
child support obligation).

2 Based on his opening brief, M.S. in the instant appeal also appears to
raise issues concerning the August 11, 2021 order denying his request for a
permanent DVRO against T.W. Because the August 11 order is the subject of
a separate appeal (see fn. 1, ante), we decline here to address any error
concerning this order.

2
that the court erred in not awarding him physical custody of C., or at a

minimum, joint custody.3
As we explain, we reject M.S.’s claims of error and affirm the

Judgment.4

3 M.S. also claims he was denied due process of law. However, he did not
brief this issue on appeal and therefore we deem it forfeited. (See Telish v.
State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 (Telish) [the
failure to raise an argument in the opening brief forfeits the issue on
appeal].) On April 3, 2023, just days before oral argument in this court, M.S.
filed a request to hold T.W. in contempt (1) for failing to notify the court of a
change in address, as required by California Rules of Court, rule 2.200, and
(2) for engaging in what he describes as her “regime of harassing actions[,]
provocation [and] incitement, with the ultimate goal of alienating [him] from
[C.].” We now deny his motion. First, although a court “has a duty to
exercise the power to protect the integrity of the court and the judicial
process,” it “must do so ‘with great caution.’ ” (DeGeorge v. Superior Court
(1974) 40 Cal.App.3d 305, 312.) The failure to inform this court of a change
of address does not rise to the level of an act of contempt worthy of
punishment. (See Code Civ. Proc., § 1209 [acts or omissions constituting
contempt].) Second, as a court of review we cannot provide the relief M.S.
seeks in his contempt motion, which includes changes both to in-person and
virtual visitation with C., and his demand that he be added to C.’s birth
certificate. These are matters that must be addressed in the trial court, on a
proper record.

4 T.W. did not file a respondent’s brief in the instant appeal. “However,
we do not treat the failure to file a respondent’s brief as a ‘default’ (i.e., an
admission of error) but independently examine the record and reverse only if
prejudicial error is found.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th
1197, 1203; see In re Bryce C. (1995) 12 Cal.4th 226, 232–233 [same].)

3
 I. RULES GOVERNING APPELLATE REVIEW
As a preliminary matter, we address the rules of procedure that govern
this appeal.
Although M.S. is representing himself, self-representation does not
excuse a party’s obligation to furnish a satisfactory record. An appellant who
chooses to self-represent must follow the same rules that apply to lawyers.
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247 (Nwosu).)
It is axiomatic that a trial court’s judgment or order is presumed
correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Accordingly, the
appellant has the burden of showing error. To do so, the appellant must
present this court with an adequate record for review (Ballard v. Uribe (1986)
41 Cal.3d 564, 574–575), regardless of whether that record is prepared by
counsel or, as in the instant case, by a party (id. at p. 575; Nwosu, supra, 122
Cal.App.4th at p. 1246).

California Rules of Court, rule 8.122(b)5 sets out the required contents
of a clerk’s transcript, M.S.’s choice of record. In addition to other
requirements, a clerk’s transcript “must” include “[a]ny . . . document filed or
lodged in the case in superior court” pertaining to the issue(s) on appeal (rule
8.122(b)(3)(A)) and “[a]ny exhibit admitted in evidence, refused, or lodged”
(id., (b)(3)(B)).
In the instant appeal, the clerk’s transcript does not contain documents
identified in both the Judgment and the register of actions that appear to be
highly relevant, if not critical, in deciding this appeal, including, by way of
example only, T.W.’s September 24, 2019 request for order on which the

5 All further rule references are to the Rules of Court.

4
Judgment is based. (See Christie v. Kimball (2012) 202 Cal.App.4th 1407,
1412 [“To the extent the trial court relied on documents not before us, our
review is hampered. We cannot presume error from an incomplete record.”].)
In addition, M.S. lodged more than 500 pages from 36 “exhibits” for our
consideration not only in connection with the instant appeal but also in the
related appeals between the parties. However, M.S. did not identify which, if
any, of these “exhibits” were “admitted in evidence, refused, or lodged” during

the four-day trial that resulted in the SOD and Judgment.6 (See rule
8.122(b)(3)(B).)
M.S. also violated rules relating to appellate briefs. Rule 8.204(a)(2)(C)
requires an appellant to “[p]rovide a summary of the significant facts limited
to matters in the record.” Here, M.S.’s summary of the facts is decidedly one-
sided, contains a considerable amount of argument, and is not “limited to
matters in the record.” (See Nwosu, supra, 122 Cal.App.4th at p. 1246
[appellants who challenge the decision of a trial court based upon the
evidence “ ‘ “are required to set forth in their brief all the material evidence
on the point and not merely their own evidence” ’ ”].)
Despite the insufficiency of the record, M.S.’s failure in his brief to
summarize all “significant facts limited to matters in the record,” and his
confusing briefing that tends to lack coherent legal argument, we nonetheless

6 Because of M.S.’s failure to make this identification and because our
review, with certain exceptions not applicable here, is limited to the record
that was before the trial court, we decline to consider any of these 36
“exhibits” in resolving this appeal. (See Center for Biological Diversity v.
Department of Conservation (2018) 26 Cal.App.5th 161, 170 [“ ‘It has long
been the general rule and understanding that “an appeal reviews the
correctness of a judgment [or order] as of the time of its rendition, upon a
record of matters which were before the trial court for its consideration.” ’ ”].)

5
will do our best to address his claims of error in this appeal. In so doing, we
will rely on the clerk’s transcript in the instant appeal; the reporter’s

transcript, which includes only one of the four-days of trial;7 and the settled
statement of the trial court filed on December 9, 2021, addressing M.S.’s

motion for reconsideration of the Judgment.8
II. FACTUAL AND PROCEDURAL BACKGROUND
Briefly, the trial court issued its SOD after a four-day trial that
commenced on February 1, 2021. This factual and procedural background is
derived primarily from the SOD.
A. Overview
M.S. and T.W. met in 2015, dated, but never married. They had a child
together, C., born in August 2016. On the day of C.’s birth, M.S. signed a
declaration confirming paternity. T.W. nonetheless filed a petition to
establish relationship in September 2016. M.S. responded by again
admitting paternity. In March 2017, M.S. requested genetic testing and,
pending those results, the family court ordered there be no visitation between

7 Insofar as M.S. challenges the sufficiency of the evidence supporting
the trial court’s factual findings, we must presume the unreported testimony
demonstrates an absence of error. (See Estate of Fain (1999) 75 Cal.App.4th
973, 992 (Fain).)

8 The December 9 settled statement provides that M.S. also filed a
motion for new trial. However, M.S. has neither included the new trial
motion in the clerk’s transcript nor argued the issue on appeal. We therefore
consider any claim of error based on its denial forfeited. (See Nwosu, supra,
122 Cal.App.4th at p. 1246 [failure to present arguments with citation to
legal authority can result in forfeiture of any contention that could have been
raised on appeal]; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050
[a brief should contain legal argument with citation to the authorities and if
none is made, the court may treat the point as forfeited].)

6
M.S. and C. In July 2017, the court reviewed the test results and M.S. signed
an advisement and waiver of rights re: establishment of parental relationship
of C. The court ordered M.S. unsupervised visitation with C. four days per
week, from 1:00 p.m. to 5:00 p.m.
Since July 2017, the “issues [between the parties] regarding custody
and visitation have been contentious and extensive,” leading to the
appointment of Dr. Stephen Doyne to perform a psychological evaluation of
the parties to assist the trial court. During the evaluation, M.S. withdrew his
consent and refused to continue. At T.W.’s request, the court allowed Dr.
Doyne to finish the evaluation without M.S.’s participation, which resulted in

a report dated September 4, 2019.9 The court noted M.S.’s lack of judgment
led him to be declared a vexatious litigant, and to the issuance of both the
DVRO and a civil restraining order protecting T.W.’s counsel and his staff,
after what the court described as M.S.’s “horrendous and threatening”
conduct against them.
The trial court also found T.W. lacked judgment by adopting a
narrative about how M.S. came to have custody of his daughter L., suggesting
it was through “nefarious means, possibly even kidnapping.” The court found
there was no credible evidence to support this narrative; that T.W. adopted it
to support her claim C. allegedly was “not safe” around M.S.; that she even
went so far as to hire a private investigator to investigate M.S. and his
custodial arrangement with L., who in turn used an alias to contact L.’s
mother I. in Africa and suggest L. was in “ ‘harm’s way’ ” while in M.S.’s care;
that T.W. knew of these tactics and at trial admitted they were “threatening
and would be disturbing to M[.S.] and I[.]”; and that from birth, T.W. had

9 Dr. Doyne’s report is not part of the record in the instant appeal.

7
“limited intentions of sharing C[.] with M[.S.,] and certainly not on a 50/50
basis.”
B. Move-Away
After discussing the factors identified in In re Marriage of LaMusga
(2004) 32 Cal.4th 1072 (LaMusga) among other authorities (discussed post),
the trial court granted T.W.’s move-away request, finding: (1) it was in C.’s
best interests to remain in the primary physical custody of T.W.; (2) M.S., in
his effort to obtain physical custody of C., had overcome the presumption

under Family Code section 304410 that it would be detrimental to the best
interests of C. for M.S. to have custody of the child due to the June 2018
DVRO; and (3) the move to New York would not occur until August 23, 2021,
allowing C. to start kindergarten while also giving M.S. the opportunity to
reestablish his relationship with the child after a long no-contact period.
C. Custody and Visitation
Although the trial court ordered T.W. to have sole legal custody of C., it
reserved jurisdiction to reconsider this decision once M.S. became “more
involved in the parenting of C[.],” which would put M.S. in a better position to
“assist in making joint decisions regarding [C.’s] health, education and
welfare.” The court also considered the DVRO in making this custody
determination, while noting it was set to expire in June 2021.

10 Subdivision (a) of Family Code section 3044 provides in relevant part:
“Upon a finding by the court that a party seeking custody of a child has
perpetrated domestic violence within the previous five years against the
other party seeking custody of the child . . . , there is a rebuttable
presumption that an award of sole or joint physical or legal custody of a child
to a person who has perpetrated domestic violence is detrimental to the best
interest of the child . . . . This presumption may only be rebutted by a
preponderance of the evidence.”

8
 The trial court included a detailed visitation schedule both before and
after C.’s move. Before the move, the visitation schedule was designed to
allow C. to slowly reestablish his relationship with M.S., with an increase in
parenting time predicated on eight weeks of compliance with the previous
step in the step-up visitation schedule. These visits were unsupervised and
once established, included overnights and weekends. After the move to New
York, the court set visitation for holidays and summer vacation, including
beyond summer 2028.
In making the visitation order, the trial court noted it was not a “final
order,” as it was “dependent on the future actions and behaviors of T[.W.] and
M[.S.]”; and that it would reserve jurisdiction to continue to make orders to
carry out C.’s best interests.
III. DISCUSSION
A. Standard of Review
“The standard of appellate review of custody . . . orders is the
deferential abuse of discretion test. [Citation.] The precise measure is
whether the trial court could have reasonably concluded that the order in
question advanced the ‘best interest’ of the child. We are required to uphold
the ruling if it is correct on any basis, regardless of whether such basis was
actually invoked.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32
(Burgess).)
“ ‘ “When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that
of the trial court.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) “We
accept as true all evidence tending to establish the correctness of the trial
court’s findings, resolving every conflict in the evidence in favor of the

9
judgment.” (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th
698, 702.)
B. Guiding Principles
As courts have recognized, move-away cases often involve “heart-
wrenching circumstances” that “would challenge the wisdom of King
Solomon” (LaMusga, supra, 32 Cal.4th at pp. 1091, 1101); and “there is
frequently no solution that is fair to everyone involved” (In re Marriage of
Bryant (2001) 91 Cal.App.4th 789, 794 (Bryant)). This case is no different.
As the trial court here recognized, the observation by the Supreme Court that
these cases “are ‘not easy’ is certainly apt, if not an understatement.”
Move-away cases are even more difficult when the move is a long
distance one, as in the instant case. Although the law recognizes it is in the
best interests of the child to have “frequent and continuing contact with both
parents” (Fam. Code, § 3020, subd. (b)), joint custody and frequent contact
are not always feasible if the parents will be living thousands of miles apart,
and in those situations the trial court is in the unenviable position of
choosing one parent to be the primary custodial parent. And while a trial
court may be tempted to require the moving parent simply to stay put, the
law provides otherwise: “the court must proceed on the assumption that the
parent will in fact be moving, and must fashion a custody order that is in the
best interests of the minor accordingly.” (Mark T. v. Jamie Z. (2011) 194
Cal.App.4th 1115, 1120 (Mark T.); see also Bryant, supra, 91 Cal.App.4th at
p. 794 [“That the move of a custodial parent may have an adverse effect on
the frequency of contact by the noncustodial parent is not by itself
determinative. What is determinative is the best interest of the children,
given that one parent is moving and the other is not.”].)

10
 Moreover, the moving parent is not required to show the move is
necessary or even wise. (Burgess, supra, 13 Cal.4th at p. 36.) Burgess
explained, “ours is an increasingly mobile society,” and “it is unrealistic to
assume that . . . parents will permanently remain in the same location . . . or
to exert pressure on them to do so.” (Id. at pp. 35–36; LaMusga, supra, 32
Cal.4th at p. 1098 [courts “must not” issue an order that effectively coerces a
parent to abandon his or her plans to relocate, for example by transferring
custody to the other parent unless the relocation plan is abandoned].)
The focus in a move-away case is on the “ ‘best interest of the child.’ ”
(In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955 (Brown).) When
making a determination on a move-away request, “the trial court has ‘the
widest discretion to choose a parenting plan that is in the best interest of the
child.’ (Fam. Code, § 3040, subd. [(d)].) It must look to all the circumstances
bearing on the best interest of the minor child.” (Burgess, supra, 13 Cal.4th
at pp. 31–32.) It must consider “ ‘the health, safety, and welfare of the
child’ ”; “ ‘[a]ny history of abuse by one parent against the child or against the
other parent’ ”; and the “ ‘nature and amount of contact with both parents.’ ”
(Id. at p. 32, quoting former Fam. Code, § 3011, subds. (a)-(c).)
LaMusga also described the factors a trial court should consider in
move-away cases: the child’s interest in stability and continuity in the
custodial arrangement; the distance of the move; the child’s age; the child’s
relationship with both parents; the relationship between the parents,
including, but not limited to, their willingness to put the child’s interest
above their own; the child’s wishes if the child is mature enough for this
inquiry to be appropriate; the reasons for the proposed move; and the extent
to which the parents currently share custody. (LaMusga, supra, 32 Cal.4th
at p. 1101; accord, Brown, supra, 37 Cal.4th at pp. 960–961.)

11
 These factors, frequently referred to as the “LaMusga factors,” are not
exclusive. (Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 905 [“list of
factors is not exhaustive”]; Fam. Code, § 3011, subd. (a).) “The weight to be
accorded to such factors must be left to the court’s sound discretion.”
(LaMusga, supra, 32 Cal.4th at p. 1093.) Given this deference, it is not
surprising that the Supreme Court has noted that reversal in move-away
cases is infrequent and ordinarily involves “unusual circumstances.”
(LaMusga, at p. 1092.)
LaMusga emphasizes the broad scope of a trial court’s decision
regarding a parent’s move-away request, noting “this area of law is not
amenable to inflexible rules. Rather, we must permit our superior court
judges—guided by statute and the principles we . . . affirm in the present
case—to exercise their discretion to fashion orders that best serve the
interest of the children in the cases before them.” (LaMusga, supra,
32 Cal.4th at p. 1101; see Burgess, supra, 13 Cal.4th at p. 39 [“[B]right line
rules in this area are inappropriate: each case must be evaluated on its own
unique facts.”].)
C. Best Interests of C.
We begin with the trial court’s finding that it was in C.’s best interests
to remain in the primary physical custody of T.W. In the SOD, the court
considered 22 factors in conducting this “delicate and difficult” inquiry (see
LaMusga, supra, 32 Cal.4th at p. 1078); made even more complicated in this
case by the extreme animosity between the parties; their “inability as co-
parents to provide stability and continuity” for C.; and their lack of personal
judgment and refusal to put C.’s best interests ahead of their own.
Courts recognize that the “paramount need for continuity and stability
in custody arrangements—and the harm that may result from disruption of

12
established patterns of care and emotional bonds with the primary
caretaker—weigh heavily in favor of maintaining ongoing custody
arrangements.” (Burgess, supra, 13 Cal.4th at pp. 32–33; see Ragghanti v.
Reyes (2004) 123 Cal.App.4th 989, 999 [in making a custody order, “a
paramount concern is the need for stability and continuity in the life of a
child, and the harm that may result from disruption of established patterns
of care and emotional bonds”].) “When custody continues over a significant
period, the child’s need for continuity and stability assumes an increasingly
important role. That need will often dictate the conclusion that maintenance
of the current arrangement would be in the best interests of that child.”
(Burchard v. Garay (1986) 42 Cal.3d 531, 538 (Burchard).)
Here, the trial court found that since June 2018 when C. was two years
old, he has had no contact with M.S. due to the June 2018 DVRO protecting
both him and his mother; that the “only stability and continuity of care” C.
has known during his young lifetime was with T.W.; and that at the time of
trial, T.W. had sole legal and physical custody of C. Although limited, the
record supports these findings and the reasonable inference therefrom that C.
has a stronger attachment to T.W. than M.S. We therefore cannot say the
court abused its discretion when it found C.’s best interests was to remain in
the primary physical custody of his mother, where established patterns of
care and emotional support exist. (See Burchard, supra, 42 Cal.3d at p. 538;
LaMusga, supra, 32 Cal.4th at p. 1093; Burgess, supra, 13 Cal.4th at p. 32.)
In affirming the trial court’s decision that C. remain in the primary
physical custody of T.W., we are not unaware of the court’s findings in the
SOD that T.W. lacked personal judgment, particularly in regard to her hiring
of the private investigator who used an alias to contact L.’s mother I. in
Africa and suggest M.S. was not properly caring for their daughter; that M.S.

13
is a “wonderful parent” to L. and facilitates contact between L. and I.; and
that since C.’s birth, T.W. “was not receptive to M[.S.’s] wish to share C[.]
equally” and “was unwilling and unable to co-parent and support a
relationship between M[.S.] and C[.]”
M.S. on appeal highlights these findings. But as the trial court also
noted, move-away cases are “ ‘not easy,’ ” a sentiment shared by many other
courts including our Supreme Court. (See LaMusga, supra, 32 Cal.4th at
pp. 1091, 1101.) And we note the court was not required to give the findings
concerning T.W. more weight than it gave to the findings concerning M.S.,
particularly given its conclusion that both parents lacked personal judgment

in this case and M.S. was still subject to the DVRO.11 (See LaMusga, at p.
1093 [“weight to be accorded to such factors must be left to the court’s sound
discretion”].)
M.S. also argues the trial court erred by granting the move-away
request without knowing where T.W. and C. would be living. We disagree.

11 Although largely ignored by M.S. on appeal, the trial court also found
he lost “ ‘trust’ ” in the “family law system” and reacted in a very “combative”
and detrimental way, stating he was “ ‘trying to make noise’ ” and likened his
situation “to that of a person being confronted in the woods by a large bear.”
The court noted M.S. had “clearly made a great deal of noise in this case” by
refusing to complete the psychological evaluation with Dr. Doyne and “to
listen to judicial officer[s’] instructions”; by “disrupt[ing] proceedings,
insult[ing] the court and counsel,” which ultimately led the court to find he
was a vexatious litigant; and most notably, by sending threatening emails to
T.W. and her attorney in May 2018, resulting in issuance of the DVRO and
the civil restraining order. The court further noted that, although M.S. was
denied visitation with C. as a result of the restraining order, it did offer M.S.
support through family court services (FCS) to allow him to “move in the
right direction so that a relationship [with C.] could resume,” but that M.S.
refused those services, instead waiting “until the current trial to have his
voice heard.”

14
The SOD expressly provides that once T.W. and C. move to New York, “[e]ach
party shall keep the other informed of their current physical address and
telephone numbers at all times.” In addition, the court noted it retained
jurisdiction “to continue to make orders to carry out the best interests of C[.]”
That T.W. did not have to disclose this information at the time of trial,
assuming then she even knew where she and C. would be living once they
moved, did not render the court’s move-away order invalid.
To the contrary, given the circumstances of this case, we applaud the
trial court for putting the best interests of C. ahead of the interests of either
parent; ordering that C. engage in therapeutic support as he moved toward
reestablishing a relationship with M.S. and sibling L.; and creating a
visitation schedule both before and after the move to New York that
facilitated C.’s relationship with them for years to come. We cannot say on
this record that the court’s move-away order was “arbitrary” or “capricious”
and resulted in a miscarriage of justice. (See In re C.B. (2010) 190
Cal.App.4th 102, 123.)
D. Changed Circumstances
M.S. argues that the trial court erred in finding T.W.’s move-away
request was in “good faith.” Specifically, he claims that T.W. misrepresented
the fact her family lives in New York as the reason for her move. Assuming
this claim of error is not forfeited on appeal based on the incomplete trial
transcript and M.S.’s failure to summarize all material evidence in his

brief,12 we conclude substantial record evidence supports the “good faith”
finding.

12 See Fain, supra, 75 Cal.App.4th at p. 992; Nwosu, supra, 122
Cal.App.4th at p. 1246.

15
 Indeed, at trial T.W. testified her mother lives in New York “the
majority of the time,” although her mother also owned a home in Florida;
that her mother’s “whole family” also lives in New York; and that her father
was contemplating a move from New Hampshire to New York. The SOD also
found T.W. was moving because the “New York area is more affordable and
she will be able to obtain a home with a yard for C[.]”; and that M.S. has not
paid any support for C. that would in part “relieve [T.W.] of the high costs
associated with living in San Diego County.” This evidence is more than
sufficient to support the court’s finding that T.W.’s reason to move with C.
was in “good faith.” (See In re K.H. (2022) 84 Cal.App.5th 566, 601 [“ ‘[t]rial
courts “generally are in a better position to evaluate and weigh the evidence”
than appellate courts’ [citation], and ‘an appellate court should accept a trial
court’s factual findings if they are reasonable and supported by substantial
evidence in the record’ ”]; Bruno v. Hopkins (2022) 79 Cal.App.5th 801, 823
[“ ‘ “A single witness’s testimony may constitute substantial evidence to
support a finding.” ’ ”].)
In any event, we note the trial court in the instant case could not
“prevent” T.W. from moving to New York. (See Ruisi v. Thieriot (1997)
53 Cal.App.4th 1197, 1202 [reversing trial court’s decision refusing to allow
custodial parent to move to Rhode Island with minor child because the trial
court applied the wrong legal test in finding the custodial parent failed to
show the move was “necessary,” in contravention of Burgess, which had
disapproved of a series of cases that “had required proof that the relocation is
‘ “essential and expedient,” ’ ‘ “for an imperative reason,” ’ or at least
‘ “necessary to the custodial parent” ’ ”].) And, although substantial evidence
supports the finding that T.W.’s move-away request was not in bad faith, we
note the good or bad faith of a custodial parent’s request to move away with a

16
child is “only one potential factor” that a court should consider, and “does not
mean that the court should apply any standard other than what would be in
the best interests of the child” in making this determination. (See Mark T.,
supra, 194 Cal.App.4th at p. 1131.)
Given the broad discretion afforded the trial court in deciding a move-
away request, and the record in the instant case that it was in the best
interests of C. to remain in the primary physical custody of T.W., we cannot
say the court abused its discretion in not awarding M.S. physical and/or joint
custody of C.
E. Motion for Reconsideration
1. Brief Additional Background
On April 22, 2021, M.S. filed a motion for reconsideration of the SOD
under Code of Civil Procedure section 1008, subdivision (a). In support, M.S.
argued the trial court should reconsider the move-away order and the
visitation provided in the SOD between C. and M.S. due to C. being
“physically, mentally and emotionally harmed by the absence of [M.S.] in his
life,” as the child “yearn[ed] to spend more time with [M.S.] and [sibling] L.”
M.S. further argued “[n]ew and/or different facts and/or circumstances have
been discovered and/or weren’t addressed by the Court” in the SOD regarding
C., including that M.S. had “no knowledge of the Child’s health, safety and
welfare for the past 35 months”; and that based on M.S.’s observations during
visits, it was “clear[ ]” there were “deficiencies” in C.’s “development” caused
by T.W.’s parenting.
The trial court heard the reconsideration motion on May 26, and on
May 28 issued a multipage “Findings and Order After Hearing” denying the
motion. The court ruled M.S. had not met his burden to provide “any new
evidence or law or a satisfactory explanation for his failure to produce any

17
new evidence at an earlier time”; that M.S. did not present any credible
evidence at the May 26 hearing on the motion that would support his request
for reconsideration; that his motion was merely “an attempt to file additional
objections and argument to the court[’]s [SOD]”; and that, to the extent M.S.
also requested a new trial, he failed to provide notice of such, and the
grounds for a new trial.
From his brief, it is not altogether clear whether M.S. is also appealing
from the denial of his motion for reconsideration, inasmuch as he provided
little or no argument to support any claim of error based on the May 28 order.
(See Telish, supra, 234 Cal.App.4th at p. 1487, fn. 4; Dieckmeyer v.
Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 260
[“appellant’s failure to raise an argument in its opening brief waives the issue
on appeal”].) However, given M.S. included the trial court’s December 9,
2021 settled statement regarding reconsideration, in the interest of justice we
address the merits of the May 28 order.
2. Guiding Principles and Analysis
Under Code of Civil Procedure section 1008, subdivision (a), a party
affected by an order granted by the court may seek reconsideration of the
order based on new law or facts. “The party seeking reconsideration must
provide not just new evidence or different facts, but a satisfactory
explanation for the failure to produce it at an earlier time.” (Glade v. Glade
(1995) 38 Cal.App.4th 1441, 1457.) We review a trial court’s ruling on a
motion for reconsideration for abuse of discretion. (New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 212 (New York Times).)
Here, we have reviewed M.S. reconsideration motion as well as the trial
court’s December 9 settled statement and find no error. We note M.S. did not
cite any new law in support of his motion. As to new facts, we defer to the

18
court’s assessment that M.S. failed to proffer any “credible evidence” of such,
a finding that, in any event, is well-supported based on our own review of the
record. (See New York Times, supra, 135 Cal.App.4th at p. 212; see also
Harris v. Stampolis (2016) 248 Cal.App.4th 484, 498 [an appellate court may
not reweigh the evidence and instead “must defer to the trial court’s
determinations of credibility”].) We therefore reject on the merits any claim
of error based on the court’s May 28 order denying M.S.’s reconsideration
motion.
IV. DISPOSITION
The Judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.

19